U.S. v. Pelaez, 97-5656

• Decision Date: 18 November 1999
• Docket Number: No. 97-5656,97-5656
• Parties: (11th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS ALBERTO PELAEZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1203

196 F.3d 1203 (11th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JESUS ALBERTO PELAEZ, Defendant-Appellant.

No. 97-5656

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Nov. 18, 1999

Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 93-00483-CR-CCA

Before BLACK, HULL and MARCUS, Circuit Judges.

BLACK, Circuit Judge:

Appellant Jesus Alberto Pelaez appeals the district court's denial of his motion under 18 U.S.C. 3582(c)(2) to modify his sentence. The sole issue on appeal is whether the district court should have reduced his sentence by applying the "safety valve" provision of 18 U.S.C. 3553(f). We hold the district court was correct in determining as a matter of law that 3553(f) cannot be applied to Appellant's sentence because the final judgment of the district court was entered before the effective date of the provision.

I. BACKGROUND

On March 3, 1994, Appellant was convicted by a jury of possession of cocaine with intent to distribute and conspiracy, in violation of 21 U.S.C. 841(a)(1) & 846. Using the applicable Sentencing Guidelines, the district court sentenced Appellant on June 30, 1994. This Court affirmed Appellant's conviction and sentence in its entirety on April 12, 1996. See United States v. Pelaez, No. 94-4766 (11th Cir. Apr. 12, 1996), 83 F.3d 435 (table).

On September 23, 1994, in the period between the district court's sentencing and the determination of Appellant's direct appeal, a "safety valve" sentencing provision for federal drug offenses took effect. This provision, 18 U.S.C. 3553(f), permits a district court to sentence below the otherwise applicable statutory mandatory minimum sentence for certain drug offenses if five criteria are established.¹ If the provision is applicable to his case and he were found to meet the criteria, Appellant would qualify for a two-level reduction in his sentence. See U.S.S.G. 5C1.2 & 2D1.1(b)(6).

Although 3553(f) took effect during the pendency of his direct appeal, Appellant did not assert during that appeal a claim that the provision could be applied to his sentence. Instead, Appellant raised the issue on June 26, 1997, in a motion for a modification of his sentence under 18 U.S.C. 3582(c)(2).² On September 22, 1997, the district court denied Appellant's motion.

II. DISCUSSION

In denying Appellant's 3582(c)(2) motion, the district court held Appellant was not eligible for the 3553(f) safety valve because the provision does not apply to his sentence as a matter of law. We review de novo the district court's legal conclusions regarding the scope of its authority under the Sentencing Guidelines. See United States v. Bush, 126 F.3d 1298, 1299 (11th Cir. 1997).

The safety valve's enacting statute provides that 3553(f) "shall apply to all sentences imposed on or after" September 23, 1994. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 80001(c), 108 Stat. 1796, 1985-86. Appellant agrees 3553(f) cannot be applied retroactively to sentences imposed before September 23, 1994.³ On appeal, Appellant maintains he is not asking for a retroactive application of 3553(f) because he argues a sentence is not imposed until the sentence is affirmed by the Court of Appeals on direct appeal.⁴

For purposes of whether a sentence was "imposed" on or after the effective date of 3553(f), we hold a sentence is imposed when the district court enters the final judgment. Most importantly, the statute under which Appellant filed his motion, 18 U.S.C. 3582, provides a strong indication that sentences are imposed only in the trial court. It states the following: "Notwithstanding the fact that a sentence to imprisonment can subsequently be" modified by a 3582(c) motion or corrected by the trial court under Federal Rule of Criminal Procedure 35 or on appeal by the Court of Appeals, "a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes." 18 U.S.C. 3582(b) (emphasis added). The applicability of 3553(f) thus is a purpose for which the judgment of conviction and sentence issued by the trial court is final--that is, because the sentence is final upon entry of judgment, the necessary interpretation is that the sentence is imposed, even for purposes of 3553(f), not when the sentence subsequently is affirmed on appeal but when the judgment initially is entered in the trial court.

Similarly, the other provisions of 3553, to which subsection (f) was added in 1994, discuss the imposition of sentences as an activity of the trial court.⁵ Likewise, the common sense meaning of the word is that a sentence is "imposed" by the trial court.⁶

Judgments of conviction and sentence issue from trial courts. Appellate courts review and sometimes vacate these judgments, but they do not impose them.

Finally, Appellant's suggested interpretation would undermine the administrative policies underlying the sentencing system, particularly the presumption that most amendments to the Guidelines are not given retroactive effect. A rule permitting defendants to take advantage of amendments adopted during the appeal but after the judgment is entered would undermine the finality of judgments and the integrity of the appellate process. It would "provide offenders with a strong incentive to delay appeals, or to take unnecessary appeals, simply in the hope that some suggested change eventually finds embodiment in an amendment that takes effect before the appeal's termination." United States v. Havener, 905 F.2d 3, 7-8 (1st Cir. 1990). Appellant's interpretation of when a sentence is imposed seeks to justify for 3553(f) a rule rightly rejected for other non-retroactive Guidelines amendments.

III. CONCLUSION

For purposes of whether a sentence was "imposed" on or after the effective date of 3553(f), we hold a sentence is imposed when the district court enters the final judgment. The judgment was entered in Appellant's case on June 30, 1994, before the effective date of 3553(f) on September 23, 1994. The district court therefore correctly denied Appellant's 3582(c)(2) motion for modification of his sentence.

AFFIRMED.

1. In full, the safety valve provides that:

(f) Limitation on applicability of statutory minimums in certain cases.-- Notwithstanding any other provision of law, in the case of an offense under [21 U.S.C. 841, 844, 846, 960, or 963], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that--

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;

(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3) the offense did not result in death or serious bodily injury to any person;

(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

18 U.S.C. 3553(f).

2. Section 3582(c)(2) provides in pertinent part that a previously imposed sentence may be modified at a later date "in the case of a defendant...